In June, 1893, one Hauschild sold to defendant Porterfield certain land in Ray county. The conveyance was a quitclaim deed, and on its face recited the purchase price to be $500 — $100 of which was in cash paid at the time, a span of mules valued at $200 Porterfield turned over to Hauschild, and for the balance of $200 defendant executed his note payable “on the. first day of March, 1894, or %ohen I get possession of all the land for which this note is given.” The deed made at the time also recites: “Second party (Porterfield) pays cash $100, a span of mules $200, and executes to first party his note for two hundred dollars payable March 1, 1894, or iohen he gets possession of the entire tract.” It seems that in November, 1893, Hauschild sold and assigned this $200 note to Shotwell, who then assigned the same to the plaintiff bank, which in May, 1895, sued the plaintiff thereon. The defense was that defendant had never gotten possession of all the lands, and hence the note by its terms was not due.
At the trial below there was a verdict and judgment for defendant, and plaintiff appealed.
premature action. jmy, An examination of the record fails to disclose any substantial reason for disturbing the judgment. The sole question is, whether or not the instrument sued on was due when the suit was brought. The evidence is without dispute that defendant had never obtained possession of some twenty or twenty-five acres of the land; that it had *576been all the time in possession of one Shipley, who refused to attorn to or recognize defendant as the owner. It is true there was some testimony tending to prove that Shipley retained the land, and held possession thereof, by and with the consent of the defendant; and on the other hand there was evidence to the contrary. But the trial judge told the jury that if they believed “that the witness Shipley was induced to and did remain in possession of the land by the permission of the defendant, then he is estopped from denying that the note sued on is not due,” etc.
“¿P7T:es’ There is nothing in the contention that defendant is estopped to claim his right of possession of the entire land as described in the deed and note. That he said to Shotwell, before the latter bought the note, that he would like him (Shotwell) to buy the note so that he (the defendant) would thereby secure assistance in getting the land in Kreitzman’s possession, was no assurance that he intended to waive any right to the land held by Shipley. Judgment affirmed.
All concur.